Clark v. Louisville N. R. R. Co.

This suit is by the appellant against appellee to recover damages growing out of delay in the transmission and delivery of a carload of potatoes received originally by the defendant as initial carrier for shipment from Castleberry, Ala., to Cincinnati, Ohio.

Demurrers to counts 1 and 3 were overruled, but sustained as to counts 2 and 4, and count 4 as amended. By reason of the adverse ruling of the court as to these latter counts, plaintiff suffered a nonsuit, and appeals to review the action of the court in sustaining said demurrer to counts 2, 4, and 4 as amended.

The shipment was interstate, and recovery is sought against defendant as initial carrier under the provisions of what is known as the Carmack Amendment to the Interstate Commerce Act of Congress. U.S. Code, tit. 49, § 20, subd. 11 (49 USCA § 20, subd. 11; U.S. Comp. St. § 8604a). We are of the opinion the trial court correctly ruled in holding these counts insufficient as stating a cause of action against the initial carrier under the above-noted statute.

An affirmative requirement of the statute is the issuance by the initial carrier of a bill of lading for the goods delivered for such interstate shipment (Adams Express Co. V. Croninger,226 U.S. 491, 33 S. Ct. 148, 57 L. Ed. 314, 44 L.R.A. [N. S.] 257), and by express terms relates to property "transported on a through bill of lading. "The obligation of the initial carrier ceases when the goods reach the destination in good condition to which they were originally intended or consigned." 1 Roberts Fed. Liability of Carrier, § 346.

In Pere Marquette R. Co. v. French Co., 254 U.S. 538,41 S. Ct. 195, 65 L. Ed. 391, there was involved an alleged wrongful delivery in an interstate shipment, and in discussing the question the court said:

"Having brought the goods to the destination named in the bill of lading the carrier's only duty under its contract was to make a delivery at that place; and it could make that delivery by turning the goods over to another carrier for further carriage. * * * The fact that in forwarding the car the Big Four used the original waybill, striking out the word 'Louisville' under the 'destination' and substituting 'Dumesnil, Ky. So. R. R.' is of no significance. The shipment from Louisville to Dumesnil was a wholly new transaction. In turning over the car for this new shipment the railway made a disposal of it in assumed termination and discharge of its obligations, which was, in legal contemplation, a delivery."

The case of Parker-Bell Lumber Co. v. Great Northern R. Co.,69 Wash. 123, 124 P. 389, 41 L.R.A. (N.S.) 1064, supports the following text in 4 Rawle C. L. 908, to which it is cited:

"This liability, however, cannot be extended beyond the contract evidenced by the bill of lading; and that is, to deliver the shipment at the place of destination therein named. Any damage * * * under a new bill of lading, cannot be recoverable against the initial carrier in the first bill of lading, whose contract and whose liability for damages, whether occurring upon its own line or that of any connecting line, cannot be extended beyond the destination fixed in the bill of lading."

It is recognized as the general rule "that prima facie a bill of lading operates [as] a transfer to the consignee of the title to the goods shipped; and in the absence of evidence removing the presumption, an action against the carrier for failure to deliver, or for * * * loss or injury to the goods while in his possession, will lie only at the suit of the consignee." Louisville N. R. Co. V. Allgood, 113 Ala. 163,20 So. 986.

"The owner of goods shipped — and prima facie the consignee is the owner — may change his instructions as to their destination, and substitute a different place of delivery; but this * * * he must do during the transit, and not after their destination has been reached, and the terms of the carrier's obligation have been fulfilled." Melbourne Troy v. L. N. R. Co., 88 Ala. 443, 6 So. 762; 2 Hutchinson on Carriers (2d Ed.) §§ 660 and 735.

The counts here in question each disclose that the bill of lading issued was for shipment from Castleberry, Ala., to Cincinnati, Ohio. The damages sought to be recovered, however, are for delay in arrival of the shipment at Detroit, Mich. Count 2 fails to allege the name of the consignee or to show that plaintiff had the legal right to divert the shipment; the consignee being the presumptive owner of the goods. For aught appearing in this count, the goods may have reached the point of destination and defendant's legal obligation met at the time of said alleged diversion and delivered to another carrier under a new bill of lading.

These observations are likewise applicable to count 4 as originally framed, as this count also fails to allege to whom the shipment was consigned.

Count 4, as amended, is more specific, showing that, in the bill of lading issued for the shipment to Cincinnati, the plaintiff was named as consignee. It further appears, however, that from Cincinnati the shipment was diverted under plaintiff's instructions to Hendricks-Jones Company, Toledo, Ohio, and for aught appearing therein this shipment was under a new bill of lading or a reconsignment with Hendricks-Jones Company named as consignee. It is then alleged that the shipment was again diverted to Detroit, Mich., to Edward Reed Son, but the presumption would also be indulged, the absence of anything to the contrary, that a bill of lading was issued for this shipment with Edward Reed Son named as consignee.

Under the rules of law above noted, this count does not show a legal right on plaintiff's part to divert the shipments, and fails to show that the shipment moved on a through bill of lading or was a through shipment under the federal statute. So far as appears, there may have been three separate shipments under as many separate bills of lading.

A somewhat similar situation involving a diversion of the shipment was presented in Parker-Bell Lumber Co. v. Great Northern R. Co., supra, wherein the court used the following language, here pertinent:

"Appellant's argument is that, under the act regulating interstate commerce * * * the initial carrier must issue a through bill of lading, and becomes liable to the shipper for all damages caused by any connecting line. It may be so conceded. This liability, however, cannot be extended beyond the contract evidenced by the bill of lading; and that is, to deliver the shipment at the place of destination therein named. Any damage to the shingles while en route from Kankakee, Illinois, to Palisades, New Jersey, under orders from appellant, and without the knowledge of respondent, under a new bill of lading, cannot be recoverable against the initial carrier in the first bill of lading, whose contract and whose liability for damages, whether occurring upon its own line or that of any connecting line, cannot be extended beyond the destination fixed in the bill of lading."

Appellant cites the cases of Warley Fruit Produce Co. v. L. N. R. Co., 17 Ala. App. 263, 84 So. 311, and Baltimore Ohio R. Co. v. Montgomery Co., 19 Ga. App. 29, 90 S.E. 740. In these authorities the courts merely construed the facts there presented as disclosing a through shipment under the original bill of lading.

No such situation is presented by the averments of the pleadings in the instant case, and these authorities do not, therefore, in our opinion, support appellant's contention here.

Counsel for appellant direct attention to an amendment to the statute passed subsequent to the institution of this suit, and insist that, although it could have no bearing on this particular case, the passage of the amendment by Congress was intended only as a declaration of the pre-existing rule of law. The amendment was by the Act of July 3, 1926, amended subdivision 11 of section 20 of Title 49 of the United States Code, and is found on page 2119 of said Code (44 Stat. 835). The pertinent portion of the amendment is as follows:

"And provided further, That the liability imposed by this paragraph shall also apply in the case of property reconsigned or diverted in accordance with the applicable tariffs filed as in this Act provided."

This amendment, being subsequent to this suit, is without influence thereon, but, if to be looked to for any purpose, would rather indicate that Congress entertained the view that the pre-existing statute did not include a shipment, where there had been a reconsignment or diversion, and that a change in that respect was desirable.

We are persuaded the plaintiff has failed to state a case within the influence of the federal statute controlling at the time of the institution of this suit, and that the demurrers were properly sustained.

The judgment will be accordingly affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and BOULDIN, JJ., concur.